Baker v. Union Stock Yards Nat. Bank

• Decision Date: 06 February 1902
• Citation: 63 Neb. 801,89 N.W. 269
• Parties: BAKER v. UNION STOCK YARDS NAT. BANK ET AL.
• Court: Nebraska Supreme Court

63 Neb. 801

89 N.W. 269

BAKER

v.UNION STOCK YARDS NAT. BANK ET AL.

Supreme Court of Nebraska.

Feb. 6, 1902.

Syllabus by the Court.

1. If a defendant claims that the court has acquired no jurisdiction over his person, by reason of defects or irregularities in the process, or service thereof, his course is by special appearance and objections to the jurisdiction; and if he goes further, and enters a general appearance, or invokes the powers of the court for any other purpose than quashing the pretended process, or service thereof, the defects are waived.

2. But where for some reason the defendant is privileged from suit in the county where or at the time when he is sued, he may set up want of jurisdiction of his person by answer, along with any other defenses he may have, without first making a special appearance or preliminary objections.

3. In such case he must plead the want of jurisdiction as soon as called upon to answer. If he answers without so doing, he cannot afterwards make the defense in an amended answer.

4. That a promissory note was executed by way of accommodation is a good defense as against the payee, but not as against the indorsee, from whom money was obtained by virtue thereof, even though he had notice of the relation of the parties to each other.

5. Where money is advanced upon the representation and in the expectation that a person named will sign a note given therefor, and he afterwards does so, there is sufficient consideration as to the latter.

6. Statements of one of the parties to a joint enterprise, made while borrowing money to be used, and which was used, in such enterprise, are admissible against the other parties thereto, so far as they form a part of the transaction.

Commissioners' opinion. Department No. 2. Error to district court, Douglas county; Powell, Judge.

Action by the Union Stock Yards National Bank against J. K. Baker and another. Judgment for plaintiff, and defendant Baker brings error. Affirmed.Hall & McCulloch, for plaintiff in error.

Kennedy & Learned, for defendant in error.

POUND, C.

The Union Stock Yards National Bank of South Omaha sued Baker and one Frazier upon a note made by Baker to Frazier, and by the latter indorsed and delivered to the bank. Service was had upon Frazier by leaving a copy at his usual place of residence in Douglas county, and an alias summons issued thereupon to Buffalo county and was served upon Baker. The latter appeared and answered to the merits, and afterwards, by amended answer, set up as a further defense that the court had acquired no jurisdiction of his codefendant, Frazier, for the reason that the latter was a resident of Illinois, and had no residence in Douglas county at the time of the service of the summons. At the trial the court directed a verdict for the bank, and the judgment rendered thereon has come before us on error.

A succession of well-considered cases has settled the law in this state as to the proper practice where want of jurisdiction over the person of a defendant is asserted. If a defendant claims that the court has acquired no jurisdiction over his person, by reason of defects or irregularities in the process, or service thereof, his course is by special appearance and objection to the jurisdiction; and if he goes further, and enters a general appearance, or invokes the powers of the court for any other purpose than quashing the pretended process, or service thereof, the defects are waived. Bank v. Knight, 50 Neb. 342, 69 N. W. 933;Ley v. Pilger, 59 Neb. 561, 81 N. W. 507. But where, for some reason, the defendant is privileged from suit in the county where or at the time when he is sued, he may set up want of jurisdiction by an answer, along with any other defenses he may have. Hurlbut v. Palmer, 39 Neb. 158, 57 N. W. 1019;Association v. Peterson, 41 Neb. 847, 60 N. W. 373;Herbert v. Wortendyke, 49 Neb. 182, 68 N. W. 350;Barry v. Wachosky, 57 Neb. 535, 77 N. W. 1080;Goldstein v. Brewing Co. (Neb.) 87 N. W. 958. While in several of these cases the defendant first made a special appearance, and objections to the court's jurisdiction over him, and, after these were overruled, set up the defense in his answer, we do not think such course is required in cases of this character. No special appearance or preliminary objections were made in Hurlbut v. Palmer, supra, or Herbert v. Wortendyke, supra; and the provisions of section 94 and 96 of the Code of Civil Procedure, taken together, would seem to make it clear that they were not required. See, also, Kyd v. Bank, 56 Neb. 55, 76 N. W. 1058. If such a defense is waivedif not set up in the answer, it follows that the defense is not waived if set up by answer, and therefore that it is not waived by any preliminary steps required before raising it in the prescribed way. That such is the proper construction of the Code is apparent upon consideration of the practice prior to the Code, and a comparison with the holdings of other courts. Reinstadler v. Reeves (C. C.) 33 Fed. 308; Ward v. George, 1 Bush, 356; Railway Co. v. Brow, 164 U. S. 271, 17 Sup. Ct. 126, 41 L. Ed. 341;Society v. Spiro, 164 U. S. 281, 17 Sup. Ct. 996, 41 L. Ed. 435. But while the defense set up in the amended answer was one that might properly be raised by answer in conjunction with other defenses, and while no preliminary objections were necessary to enable it to be so raised, we think it is the duty of a defendant in such cases to plead the want of jurisdiction as soon as called upon to answer. If he answers without so doing, we think he...